The Death Penalty, Mercy and Islam: A Call for Retrospection

THE DEATH PENALTY, MERCY AND ISLAM: A CALL FOR RETROSPECTION
By Dr. Khaled Abou El Fadl

(From the book: Religion and the Death Penalty: A Call for Reckoning by Erik C. Owens. The article below appears without the extensive footnotes that appear in the original article published in the book.)

This essay will offer an Islamically informed and inspired critique of the notion of the killing state —the legitimacy and propriety of the state retaining the ability to terminate human life in order to preserve and protect human life or in order to achieve other desirable goals, whether such goals are social, political, or moral. The very concept of the killing state seems to be premised on the notion that, under certain circumstances, the state can or should be trusted to terminate lives in order to serve and promote certain objectives, and that these objectives are of sufficient moral merit and weight that they, ultimately, could justify the act of terminating a life. From an Islamic perspective, this is an extremely serious affair. As we will see below, when one deals with life, one is necessarily dealing with what is known as the boundaries of God (hudud Allah)—one is treading upon Divine territory and one does so at great peril to one’s soul and ultimate well-being in the Hereafter. Islamically, it is believed that when it comes to hudud Allah, God is the possessor of the exclusive right to forgive or punish transgressions and ultimately, it is God who decides whether any authority delegated to human beings has been mishandled or abused. Importantly, as to hudud Allah or the territory of God’s moral jurisdiction, human beings may adjudicate, or otherwise deal with, acts and behavior that fall within this exclusive Divine jurisdiction only pursuant to a delegation of authority directly by and from God (istikhlaf wa tafwid ilahi). In the Islamic tradition, human life, and in fact life in general, is sanctified—life is inviolable and its existence or termination is placed squarely within the boundaries of the Divine jurisdiction. Consequently, human life may be extinguished pursuant only to a clear, explicit, unambiguous, and unwavering authorization and delegation of proper authority by the possessor of the ultimate right over human existence—in a word, God. Any ambiguity, doubt, or lack of certitude as to existence of proper Divine authorization or delegation is known in Islamic theology as “shubha.” The existence of any shubha accrues in favor of the preservation, and against the termination, of life. This means that in the paradigms of Islamic theology and law, there is a strong presumption in favor of the continuity of life, and to overcome this presumption, one must have a clear mandate from the Divine. If there is any doubt as to the existence of such a mandate, the pro-life presumption is not overcome, and the act of killing someone would necessarily become an immoral and unlawful act. In this context, it is important to emphasize the onerous responsibility set upon the killing state. When a state acts to terminate a life, at least for the purpose of performing this particular act, the state represents and stands in for God. In effect, the state claims that the termination of life in question, in any particular case, is both authorized and desired by God. Islamically speaking, because the question of life is always a Divine province, then killing can only be justified if God has admitted and empowered the state within this province. In turn, when the state kills, it does not do so on behalf of the citizenry, the will of the majority, or even in the service of compelling national security interests, rather, ultimately, the state is acting on God’s behalf, while purporting to know the Divine will and while claiming the ability and competence to faithfully and effectively carry out this Divine will. Stated in this way, one cannot help but wonder whether the state can ever be secure and confident as to the legitimacy and justness of its decision to act on God’s behalf and terminate life. Significantly, Muslim jurists often were willing to assume that the state, in fact, can be entrusted to discharge its obligations under the Divine mandate, and thus, the state can and should be entrusted to terminate life upon the occurrence of certain offenses.

In this article, I will present an Islamic critique of the idea of the killing state. I will argue that, from an Islamic perspective, that the entrustment of the state to be God’s faithful executioner is, to say the least, problematic. Entrusting the state to play this hazardous and often untenable role of carrying out the Divine mandate, if one does in fact exist, raises a set of theological and ethical problems that are not adequately addressed by simple reliance on procedural guarantees or by augmenting the integrity of the process that results in the decision to terminate life. At this point, I should make two cautionary remarks that are material to the balance of this exposition. First, I should confess that personally, I am not morally opposed to the death penalty under all conditions and circumstances. Since my sense of morality is strongly informed by what I believe to be Islamic ethics and mores, I am unable to take a principled and unwavering stand against the death penalty in all circumstances and under any possible conditions. Islamically, however, as explained below, I find the death penalty to be an inferior and, under the best of circumstance, a suspect moral choice. More importantly, theologically, the very notion of the killing state is highly problematic. At what point the state can claim the ability to discharge the Divine mandate without the possibility of error, lest it wrongfully destroys what God magnanimously has created, is something that I dare not presume to hazard to guess upon. What does seem to me to be Islamically necessary and compelling is extreme caution and skepticism about the moral probity and indeed worthiness of a state that is willing to share the seat of judgment with God, and kill. This is all the more so when we consider the moral standing and worthiness of certain Muslim and non-Muslim states, such as Saudi Arabia, Pakistan, and the USA—countries that deal with the issue of the death penalty with what appears to be a certain level of casualness and haphazardness. Historically speaking, my pronounced skepticism about the justness of the death penalty and my strong distrust of the moral integrity of the killing state are not idiosyncratic concerns. As discussed below, Muslim jurists, and perhaps even God, shared many of the same concerns. Muslim jurists questioned the morality of the death penalty, and also questioned whether the state should be allowed to execute its own citizens. The way Muslim jurists responded to these challenges was by seeking refuge in the technicalities of the law. In other words, the juristic response was legalistic and profoundly technical. Working with the micro-details and technicalities of the law, Muslim jurists challenged the discretion of the state and made it difficult for the state to carry out the death penalty, and also made it difficult for the state to claim that it has complied with all the procedural and evidentiary requirements in its application of this ultimate punishment.

The second cautionary remark has to do with the employment of the word “Islamic.” A friend once commented that he has seen Muslims walk down the road, love, live, and die, but he has never seen Islam walk down the road, or engage in other activity. His point is that as a socio-anthropological fact, it is Muslims who believe and act, while Islam is defined in accordance to what Muslims claim it to be. To the extent that his comment means that Islam is necessarily ephemeral and evanescent—unconditionally bonded to what human beings say and do—I disagree. Islam is the product of the constant and evolving dynamic between the Divine and the temporal—between the scripted text, the unscripted text of creation, and the reader of these texts. So there is no question that Islam evolves, and refashions and re-articulates itself. But it evolves within the parameters set for the engagement by the primordial and transcendent, as expressed in the scripted and unscripted texts of Creation and God. This point is important because if Muslim socio-anthropological and political practice was dispositive in defining what Islam is and what it represents, this essay would have to be simply descriptive and not aspirational. I would have to limit myself to describing what Muslims have said and done about the death penalty to date, and my exposition would be concluded at that. But in fact, I am less interested in Muslim practice to date, and far more concerned with explicating aspirational paradigms that, I believe, would constitute a greater fulfillment of the primordial and transcendent ideals of Islam. Put differently, I am advocating a vision, based on what I understand to be Islamic ethics, which would constitute what I believe to be a truer and more authentic fulfillment of Islamic moral ideals. The moral worth of this vision does not entirely depend on whether it is accepted or supported by other Muslims. As a believer, I cling to the hope of achieving God’s pleasure with the vision articulated, and also the anticipation of God’s judgment as to whether this vision, in fact, constitutes a more effective and persuasive realization of Islam. To the extent that there will be an occasion to comment on the historical practices of Muslims, it is important to keep in mind certain facts about historical practice of Muslim jurisprudence and about the nature of Islamic law, in general. It is important to note that, quite to the contrary to the claims of Western orientalists, when one speaks of the Islamic law, one does not speak of an abstract theoretical tradition. Rather, the paradigms of Islamic law and determinations of Islamic law have been enforced to various degrees of effectiveness throughout a long historical period. Consequently, the Islamic legal tradition is rather complex and diverse, and it often defies all simplistic generalizations and essentialisms. In addition, the Islamic legal practice, especially on the issue of the death penalty, often wavered between obstructionism and accommodation, as Muslim jurists balanced between the perceived need for practicality and functionality on the one hand, and the call of idealism on the other. This reality counsels against assuming that Islamic law is unified, cohesive, and systematic on all material points, and Muslim legal practice exhibits a remarkable, and challenging, range of diversity and richness.

The Sanctity of Human Life:

I begin this exposition with the Qur’anic narrative on the story of the sons of Adam—Cain and Abel. Overcome by blinding jealousy, Cain resolved to kill his brother Abel, and according to the Qur’anic narrative, Cain did not conceal his murderous intentions. Cain announced to Abel his intentions by threatening to kill him—a threat that Cain carried out by murdering Abel. In Islam, as in other religious traditions, Cain represents the imbalanced man who has arrogantly strayed away from God’s guidance, while Abel represents someone who is truer to God, as well as someone who better reflects worthy human ethics and morality. Abel’s conduct, in the Qur’anic narrative, is presented as exemplary and inspirational. This is why Abel’s response, upon receiving Cain’s deadly threat, is important: “If you [Cain] extend your hands against me to kill me, I shall never extend my hands against you to kill you for I fear God, the Lord of all the worlds.” There are two points that are noteworthy here: one, Abel refuses to engage in anticipatory termination of life—he refuses to terminate Cain’s life in a pre-emptive strike to preserve his own, and two, Abel seems to reject altogether the idea of preserving his own life at the cost of terminating another. Arguably, Abel would not have been blameworthy if he responded to a clear and immediate danger to his life by killing Cain. However, regardless of whether Abel’s killing of Cain in self-defense would have been excusable, Abel chose the morally superior option of not risking the termination of another’s life and thus, in effect, speculating upon God’s mandate. Even if Abel could have committed a justifiable homicide, he apparently did not wish to partake in the defilement of existence with murder or to be a participant in the act of what the Qur’an calls, “corrupting the earth” (ifsad fi al-‘ard). The very act of spilling blood, even if for justifiable reasons, destroys the life created by God and, in fact, disassembles and subverts the very logic of creation. Here, it is important to distinguish between corruption on the earth as an ethical concept and as a technical legal doctrine. In the Qur’anic discourse, the expression “corrupting the earth” is used to identify behavior that is destructive of life, creation, and the order of existence. Therefore, in the Qur’anic discourse, the meaningless destruction of livestock, nature, human life, the dismantling of places of worship, the undoing of social peace, the undermining of justice, oppression, the spreading of rancor, hatred, fear, and anxiety, as well as war in general, are all categories of acts that are designated as part of the types of acts that cause corruption in the earth (al-fasad fi al-ard). In Islamic law, corrupting the earth, as a legal doctrine, refers specifically to acts of banditry, brigandage, piracy, highway robbery, and the modern crime of terrorism. The Qur’anic notion of corruption on the earth is much broader than the Islamic jurisprudential categorization. In the Qur’an, the corruption of the earth is the byproduct of committing acts that, at a minimum, can be described as not beautiful or ugly. It is as if corruption of the earth is the outcome of human behavior that violates the primordial order and logic of existence that has been set in motion by acts of Divine grace and magnanimity. This primordial order or logic is signified in the Qur’an by the word al-mizan (the primordial balance), and the Qur’anic vision enjoins human beings to guard against upsetting or undermining the very balance that sustains God’s miraculous creation—life in all its physical and non-physical forms. In essence, corruption on the earth is to act to generate or perpetuate an imbalance in the logic of creation—a logic that is necessary to signify and express Divine beauty—by promoting conditions, such as war, injustice, oppression, and terror, that disrupt the flourishing of the full expression of life (including, for instance, the life of the intellect, the heart, and the soul).

Seen in this fashion, Abel’s decision not to defend himself by rushing to pre-empt his brother by killing him first makes much more sense. By killing, Abel would be setting a precedent, and would be taking the risk of contributing to an imbalance that could possibly strongly constrain the flourishing, or even negate and void, Divinity. If Abel had killed Cain, Abel would have risked disrupting the very supernal balance that sustains divinity in human existence. Simply put, for the sake of preserving his own life, Abel would be risking contributing to a corruption on the earth that could disrupt or fracture so much else in existence. The equation is not simply that in which one life is given in return for another, and also it is not one in which the preservation of one life could justify extinguishing another. So, for instance, Muslim scholars reflecting upon the story of Abel and Cain concluded that even in the presence of overwhelming coercion or duress, a person should not save his or her own life by sacrificing another. It is one thing, the jurists reasoned, to forgive a person who in the heat of the moment defended himself by murdering an aggressor; but it is quite another to deliberately play God and choose who should live or die. As a further example, in the case of a crowded boat, in which the only means for the collectivity to survive is to throw several passengers overboard to drown, most Muslim jurists held that it would not be permissible to do so. Rather, the passengers, as a collective whole, should protect each other, and take their chances with nature. Similarly, if someone puts a gun to a man’s head and commands him to either kill a third person or die, the man under compulsion should not do so, even if the cost is losing my life. Significantly, the rule remains the same even in the case of ten people who are threatened with death if they do not all participate in the murder of one person. Although if this one person is murdered, possibly ten people could save themselves, most jurists would have still considered the murder unjustified. In contrast to examples given above, coercion, however, will be effective in excusing a whole multitude of illegal acts that fall short of murder such as eating pork, drinking alcohol, stealing, or even cursing God and the Prophet. In summary, Muslim jurists were extremely reluctant to accept a claim of coercion or compulsion in cases of murder, and also rape. Having said all of that, it should also be noted that in the case of murder due compulsion, Muslim jurists refused to implement a capital penalty to the crime because the existence of duress acts as an element of doubt (shubha) that must be weighed in favor of the defendant.

At this juncture in the essay, it bears emphasis that the moral lesson of the story of Cain and Abel is that human life is too magnanimous and supernal to be the subject of mathematical equations. When people kill, they do not just exterminate a breathing being, but they construct certain meanings and deconstruct others. They affirm values and negate others. In giving life, human beings imitate and promote the model set by the Divine in perpetuating and reproducing the act of creation. In eliminating life, exactly the opposite takes place—Divine creation is challenged and denied. The mathematical logic of one life equals one life, and two lives equals the same is a degradation of Divinity. As argued below, it might be acceptable at an elemental and primitive stage of moral development, but it does not represent the ethical vision to which human beings should aspire.

After narrating the story of Cain and Abel, the Qur’an addresses, among other things, the Divine commandments regarding murder, especially in the pre-Islamic era. I believe that the balance of the Qur’anic narrative on the issues related to the story of Cain and Abel offers strong support for the interpretation I proffered above. The Qur’an comments that Cain’s sin exceeded by far that which is incurred for killing a single human being. Cain virtually has killed all of humanity. The Qur’an goes on to state the following: “For that, We (God) ordained for the Children of Israel that he who kills a human soul, unless it be for a soul or for spreading corruption on the earth, it would be as if he slew all of humanity, and he who saves a soul, it would be as if he saved all of humanity. Indeed, Our messengers came to them with clear messages and yet many of them, even after that, continue to exceed the limits on the earth.” From this verse, the Qur’an proceeds to articulate the most unequivocal condemnation against those who wage war against God and God’s Prophet and commit corruption on the earth and goes on to set out very strong earthly penalties for this behavior. The Qur’an, however, leaves the door open, so-to-speak, for the possibility of repentance and forgiveness by emphasizing that those who repent and reform their conduct, before they are apprehended, ought to be forgiven.

The narrative of Abel and Cain, although setting out and identifying the higher moral plane, ought not obfuscate the fact that the Qur’an clearly accepts that killing might be warranted under a certain set of circumstances. But it is also clear that the Qur’an strictly prohibits any killing except for a just cause, and indeed presumes all killing to be unjustly done unless proven otherwise. In addition, the Qur’an flatly states that: “It is not for a believer to kill another believer except that it be by mistake (unintentional and accidental)…,” and it decisively threatens whomever commits murder with God’s wrath and everlasting Hellfire.” The Qur’anic expression for a just cause that can possibly render a homicide justifiable is the word “haqq.” Haqq literally means something that is correct or proper, or one’s due or right. Pursuant to the Qur’an, all forms of killing are not excusable unless by mistake or according to a haqq. As explained above, the haqq involved belongs to God, and any dealing with human life that exceeds the limits set by the possessor of right (God), is susceptible to suffering God’s anger and wrath. As importantly, since God is the possessor of the haqq, the disposition as to what happens if a human life is terminated also belongs to God.

In the case of accidental death, the Qur’an sets out fairly clear rules. As a form of penance or atonement for the unintentional wasting of human life, a Muslim is ordered to free a slave, if he owns any, and pay the relatives of the deceased a sum of money in compensation for the wrongful death. If the offender does not have a slave to free then he should fast from sunrise to sundown everyday for two months. The symbolism here is striking—by freeing a slave, it is as if the offender has given a life back, but he or she must still pay compensation to the relative of the deceased. Interestingly, in this particular passage, the Qur’an does not say anything about the desirability of forgiveness—the desirability of the relatives of the deceased forgiving the sum of money owed to them by the offender. Additionally, as to the consequences of intentional murder, the Qur’an asserts only that intentional homicide is a crime that warrants God’s wrath, but does not elaborate upon how a murderer should be treated. In other contexts, the Qur’an does elaborate upon the principles that ought to guide the treatment of murder, but its treatment, as will be seen, is nuanced and not decisive. First, in addressing the law given to the Israelites, the Qur’an asserts that God had sent the Torah to Moses, containing guidance and light, and commanded the Israelites to judge by it. The Qur’an then comments that those who do not judge according to what God has revealed are the true unbelievers. The Qur’an goes on to state that God had ordained upon the Israelites the rule of the talion that: “A life for a life, eye for an eye, nose for a nose, tooth for a tooth and as to wounds, their (just) equal. But if anyone forgives retaliation by way of charity, it will be atonement for him (or her). And whosoever does not judge by that which God has revealed, such are the true wrongdoers.” (5:44-45).

There are several noteworthy, and controversial, issues regarding the intended meaning and import of this revelation. First, it should be noted that although the Qur’an sets out the principle of strict equality, as the basis of justice, it actually favors charity and forgiveness. Those who are concerned about their life in the Hereafter would be tempted by the opportunity to perform acts of atonement, instead of seeking vengeance on this earth. Second, there are two ways to look at the effect of this Qur’anic commandment. The Qur’an could be seen as imposing a strict, and possibly harsh, law of equality of an eye for an eye—which, as the common saying goes, could make everyone blind. Alternatively, if taken in context, the Qur’an could be seen as actually imposing a rule of limitation, as a base for minimal justice, but not supernal or superior justice. Put differently, the Qur’an rejects the pre-Islamic customary practices of vengeance in which retribution depended on status and class of the victim and aggressor. In that pre-Islamic paradigm, ten lives from a weak or undistinguished tribe could equal one life from a superior tribe. This reading is supported by many sources in the Islamic tradition that explain that Islam abrogated the tribal practices of class-based justice and replaced it with a principle mandating equality between all the victims of crimes, and also between the victims and offenders.

The third point worthy of note, and perhaps the most important, concerns the continuing applicability of the law of an eye for an eye, and its validity for Muslims. According to the Qur’an, at one point in time, God decreed the law of an eye for an eye for the Israelites, and the question is: Is this law applicable to Muslims? The larger question is whether this law has universal validity. Reportedly, the occasion in which the “eye for an eye” verse was revealed was in the context of rendering a judgment according to Jewish law in a criminal case. According to these historical reports, the Qur’anic verses, on the issue, were revealed when the Prophet was called upon to arbitrate according to the rules of Jewish law a conflict involving Jews living in Medina. Under the interpretation that I am advancing here, the law of talion was a part of an evolutionary process towards a greater fulfillment of Divinity and justice. Furthermore, there is an aspirational element to the law—under certain conditions talion might be a necessary step in the development of moral law. It was a step towards weaning human beings away from strongly engrained practices of classicism and inequality, but the moral hope is to take further steps towards forgiveness, or towards the supernal moral behavior exhibited by Abel towards Cain. This evolutionary interpretive approach is further solidified by another Qur’anic revelation addressing the issue of qisas (punishment or the law of exaction), in general.

The Qur’an states:

Oh you who believe! The law of qisas has been prescribed for you in cases of murder: the free for the free, the slave for the slave, and the woman for a woman. But if there be forgiveness by a brother for his brother then adhere to fairness, and remit any rights with handsome gratitude. This is an alleviation and mercy to you from your Lord. Whoever transgresses after this, he will have a grave penalty (from God). Oh people of reason (and understanding), in qisas you will find (the saving of) life, so that you may (learn to) restrain yourselves.” (2:178-9).

Although some jurists disagreed, the majority read this revelation to mean human beings are equal. The purpose of this verse is not to say that a man, for instance, cannot be punished for killing a woman. Rather, the verse is intended to affirm the end of status-based justice; therefore, most jurists interpreted the word qisas, in this context, to mean the law of equality. Hence, the Qur’an is demanding that, at a minimum, lives be saved by adhering to the strict limits of the law of talion. Importantly, however, the Qur’an encourages finding alternatives to retaliatory killings by opening the door to financial settlements, demanding restraint and prohibiting transgressions, and favoring forgiveness, kindness, and gratitude.

Two significant points regarding the Qur’anic rhetorical strategy should be noted here. First, although the Qur’an is dealing with the painful subject of murder, it reminds its readers that human beings, even the murderer and the kin of the murdered, are still brothers (and sisters). This affirmation of the bonds of brotherhood and sisterhood among human beings is important to remember, especially in the aftermath of a murder, at a time when the temptation to indulge in rancor and hatred is most pronounced. Second, the Qur’an describes as an alleviation and mercy the acceptance of settlements and the promotion of alternatives that limit the bloodshed and further loss of life (an alternative referred to in Islamic law by the phrase haqn al-damm—restricting the flow of blood) is described. As the Qur’an itself seems to indicate, the ability to put an end to bloodshed and minimize the destruction of life is indicated as a mercy or as a natural good for humanity. The Qur’an does not explicitly state that the law of talion—which as explained restricted the Israelites to an eye for an eye, instead of many eyes for one important eye—is abrogated or voided. Rather, the Qur’an seems to have a moral trajectory, which it attempts to achieve not simply by ordinance and proclamation, but by working with human beings, within their context-bonded limitations, in order to inspire them to reach greater levels of ethical and moral fulfillment. It is as if God, knowing the human weakness for vengeance and for indulging in behavior that leads to the corruption of the earth, proceeds to engage human beings in an evolutionary and incremental moral education; this process allows human beings to reach higher levels of moral awareness, as human beings learn to restrain their indulgences and re-direct their lust for vengeance. If one reflects on the moral trajectory of the Qur’an, one understands that the greater the desire for destruction and vengeance, instead of reform and repentance, the greater the risk of causing corruption on the earth, and the further away that human beings drift from Divinity. On the other hand, the more human beings are able to generate alternatives to the reciprocal destruction of life, the safer they are from falling into the abyss of corrupting the earth, and in the process, negating Divinity.

Should the State Kill?

One of the core concepts of the Qur’an is the sanctity of human life. The Qur’anic expression is the word haram, which means to make protected or render untouchable. The Qur’an persistently states that God has sanctified human life (harrama Allah) by proclaiming it inviolable and immune. But even more, beyond sanctifying human life, the Qur’an declares that God has declared that human life is to be honored and revered. In one of the powerful symbolic narratives in the Qur’an, after the moment of creation, God entrusts human beings with the blessing and burden of free will, rationality, and accountability, and as a way of honoring human beings, God commands the angels to prostrate themselves before Adam. God also informs the angels that human beings are going to be entrusted with the earth, as God’s deputies and viceroys. The angels, however, who do not have rational faculties or free will, somewhat prophetically, could not help but wonder why God chose to give the earth to, what the angels described as, beings who will spread corruption and shed blood. The angels noted that while human beings are capable of spreading corruption, they (the angels) unfailingly supplicate and praise God without the possibility of ever going astray. The Divine response was to emphasize that God knows what the angels do not know, and to have Adam prove the merit of human beings by displaying his capacity for learning, comprehension, and thought. Notably, the shedding of blood, something in which Cain ultimately indulges, is equated with the corruption, and perhaps defilement, of the earth. The Qur’an describes God as often intervening to save human beings from the follies of their actions, and to squelch the fires of war and destruction that human beings inflict upon themselves. In fact, the Qur’an asserts that, if not for the Divine interventions, human beings would have caused greater corruptions on the earth. And, to paraphrase the Qur’an, but for God’s compassionate mediations, human beings would have destroyed many more monasteries, churches, synagogues, and mosques—places where the name of God is frequently mentioned. Ultimately, if human beings persist in forgetting God and God’s Divine mandate, God will forget them, and will allow them to suffer the full consequences of their actions. Within this compelling paradigm, one cannot sufficiently emphasize the extent to which, according to the Qur’an, injustice and oppression play a central role in spreading corruption in the earth. Despots and oppressors are the quintessential corrupters of the earth because in their arrogance and haughtiness, they are blinded to their own transgressions and the resulting imbalance that they produce in the world. However, contrary to the pessimistic outlook of the angels, the Divine outlook seems to be marked by its concern for potentialities, not inevitabilities. It is as if the potentiality of corruption on the earth stands as an ever-present specter that must be vigilantly guarded against. This specter is like the persistent danger of despotism and oppression, or what has been described as the iron law of oligarchy, which constantly threatens any society or political entity with the tendency to drift towards authoritarianism. This is crucially important because of the nature of the death penalty and also the potentialities that are unleashed by this punishment.

The Death Penalty in the Despotic State:

The finality of the death penalty presents a serious burden for the potential for achieving justice in any particular case. Since capital punishment deals with death, the danger of it contributing to corruption on the earth is rather markedly high. By succumbing to the death penalty, the state is demonstrating its moral inadequacy because it is presumed that the state has not been able to produce alternatives to the destruction of life. In effect, the state is succumbing to the primitive ethical impulse of seeking vengeance instead of pursuing a course that comes closer to reconciliation, reform, and repentance. More dangerously, the state could be using the death penalty to conceal or cover up its profound moral failures. Stated differently, the state could have failed to bring about the kind of socio-economic and political conditions that are more conducive to achieving a higher state of moral awareness. Instead of confronting and dealing with these failures, the state comfortably relegates itself to killing people, rather than improving their conditions for moral advancement. If the death penalty is, in fact, pursued as a distraction and as a method of escaping its own socio-economic and political failures, then this means that the state is also moving closer to becoming an oppressor, i.e. a corrupter of the earth. It is of the utmost significance to note that the converse is also true. By using the death penalty, the state could be transforming itself into an oppressor; but as well, if the state is already an oppressor it will naturally gravitate towards using the death penalty.

Because of the absence of accountability and transparency in a despotic system, an oppressive state will find the death penalty extremely attractive at many levels. The death penalty provides finality, forecloses the doors of accountability; eliminates actual and potential foes to government; disseminates fear in society while also encouraging a superficial and false sense of security; and resolutely underscores the overwhelming power and resolve of the government—all of which are characteristics that serve a despotic regime very well. Therefore, we find that we have a two-fold dynamic: states that rely on the death penalty, in part as an avoidance mechanism are at a very high risk of transgressing the bounds and therefore, becoming oppressors, and states that are already oppressive will tend to favor the death penalty, not just as a mechanism to avoid confronting their moral failures, but also as a mechanism to further anchor and strengthen their oppressiveness.

The nature of this dynamic cautions that dealing with the death penalty is literally like playing with fire. It is reasonable to assert that a despotic state is simply not, even under the best of circumstances, apt to deal with the death penalty. I believe that, by necessity, a despotic or authoritarian state is not capable of handling the death penalty under any circumstances or conditions. As explained, an authoritarian or despotic state already suffers from the infamy of being a corrupter on the earth. Lacking even the mechanisms for accountability and transparency that are necessary for the dialectical development of ethical responsibility, it is near certain that a dictatorship will transgress the bounds of haqq when applying the death penalty. This will only worsen and further exasperate the status of such a state as a corrupter on the earth. In addition, it should be remembered that the state, when it implements the death penalty, it does so pursuant to a perceived mandate (effectively, a license) by God, and that it must stay within the strict bounds of the mandate. A despotic state commits the grave sin of idolatry when an individual, or a group of individuals, within the state, become the self-referential arbitrators of the law. Although despots may claim to rule according to God’s law, they hold themselves above human judgment, and in doing so they share an attribute that, in Islamic theology, is reserved only to God. Furthermore, in exclusively occupying the seat of judgment over other human beings, and ruling according to their personal whim, despots constantly run the risk of replacing God altogether, as the ultimate authority and frame of reference. I think it is fair to say that it truly pushes the bounds of absurdity to trust a matter as serious as the death penalty to authoritarians, despots, and tyrants. Human beings, and especially Muslims, should demand that, as a matter of principle, the death penalty should not be a tool available to despots and tyrants. Put in the technical language of Islamic law, despotism and authoritarianism should act as an element of doubt (shubha) in a capital offense that automatically eliminates the death penalty as an option in criminal matters.

The Death Penalty in the Non-Despotic State:

The next logical question is, Should the death penalty exist in a non-despotic state or a democracy? Assuming that a Muslim democracy exists, would it be justified in applying the death penalty? Admittedly, from an Islamic perspective, the case against the death penalty is much more compelling in the case of an authoritarian or despotic system. The more a system is able to meet the criteria of accountability and transparency, the more capable it is of dealing with the moral responsibility of justice, the more capable it is of upholding the principle of haqq, and also the more capable it is of discharging its obligations towards God. Furthermore, the more just the system of governance and law, the less there is a shubha, and the less risks there are of transgressing the bounds. Nevertheless, other than the factors already discussed, there are further reasons to avoid the death penalty in every possible way even in a non-despotic system. I will call this additional justification the mercy factor.
As noted above, there is a moral dialectic to human existence and its relationship to the Divine. While the Qur’an indicates that revelation to the Israelites established the first principles of justice, justice remains a potentiality that can be attained to a greater degree but that can never be fully realized on this earth. It is a tenet of Islamic theology that perfect justice is realizable only in the Hereafter, and that the capability to achieve perfect justice belongs to the Divine alone. In the unfolding saga of Abrahamic revelations, the Qur’an revealed another factor that constitutes a further element in the formulation of a comprehensive view of justice. This factor is that of compassion and mercy—a factor that considering the modern Muslim reality seems like a cruel irony.

I have already alluded to the factor of mercy in the context of discussing God’s alleviation of the strict law of talion. This factor, however, is made much more explicit and pronounced when the Qur’an addresses the fundamental purposes of the Islamic revelation. The Qur’an consistently emphasizes that one of most basic and fundamental purposes of the revelation was to bestow a mercy upon human beings, and to teach human beings to deal with one another with compassion. The Qur’an asserts that the Prophet Muhammad was sent as a mercy to humanity, and it enjoins human beings to hold steadfast to patience and to disseminate mercy amongst themselves. Like other Qur’anic injunctions, the command is broad, so that it offers possibilities of growth for those who are willing to take it seriously. Mercy and compassion is a state in which people can attain a condition of greater beauty—what the Qur’an calls ihsan (beneficence). The Qur’an often equates mercy and compassion with the ability to forgive—to rise above the logic of equality-based petty justice—and describes the rejection of retribution as a frame of mind that brings people closer to piety. In the Qur’an, true piety (taqwa) is achieved when a human being avoids rancor and anger, and exercises self-restraint through acts of mercy and compassion. Ihsan (the person who exercises it is described as a muhsin) is a word with levels of meaning. It encompasses mercy, compassion, self-restraint, and forgiveness, but it ultimately means a state of goodness and beauty.

In one of the many reports explicating some of the requisites of ihsan, a group of believers sought out the Prophet to complain to him a deep sense of frustration. These individuals objected to the level of tolerance the Prophet showed his foes, which, in their view, made them feel weak and subservient. The group explained that because of the Prophet’s policies of self-restraint and tolerance, they felt that they got more respect from others when they were non-Muslims because before their conversion to Islam, people feared them. The Prophet’s response reflected the general thrust of his revelation and message—he stated: “But I have been charged with the obligation to forgive,” and the Prophet went on to advise his visitors to be patient. The point that I extract from this report, as well as many similar others, concerns the relationship of mercy and compassion to power and the ego. The death penalty is an ultimate exercise of power—someone gets to decide whether the other lives. Those who suffer a violent crime and also the next of kin of a murdered relative are bound to feel an overwhelming sense of disempowerment and indeed vulnerability. It is perhaps healing and empowering for the victim of a crime to play a role in deciding the fate of the aggressor. The victim no longer remains a passive and powerless entity that suffers what others choose to inflict upon it. Rather, the victim regains his or her initiative and plays an affirmative role in deciding what is to be done to the person who robbed him or her of all sense of power and dignity in the first place. I think this is exactly why the Qur’an consistently gives the victim of a crime a role, if not the central role, in deciding what ought to happen with the aggressor. As mentioned above, the victim has three choices in the case of an intentional crime: exaction, compensatory settlement, or forgiveness.

The Qur’an is aware that it has delegated a considerable amount of power to the victim of crime, and therefore, it cautions against the abuse of that power. The Qur’an states: “Do not slay the soul that God has made sacred, except for just cause (pursuant to a haqq). For those who have been murdered unjustly, We have given their heirs authority and power (sultana) in the matter [to demand exaction, compensation, or forgiveness], but let them not exceed the just limits in slaying, for they have been given power (mansura).” What I find particularly intriguing here is the usage of the words sultan (power, authority, or jurisdiction) and mansur (someone who is empowered, aided, rendered victorious, or supported). It appears that the Qur’an is addressing the same type of human emotion manifested by the companions of the Prophet who protested his policy of self-restraint and forgiveness, but, of course, in a different context. The companions were addressing an issue of general public policy, while the Qur’an in the verse above addresses a private cause of action. As a matter of addressing private rights—individual feelings of disempowerment and vulnerability, not necessarily the desire for vengeance and revenge, the Qur’an seeks to vindicate the victim by allowing him to regain a sense of control and authority over his own life. The feeling of empowerment, however, comes from the choice—the ability to choose, regardless of the actual choice made. Importantly, however, and this is where the mercy factor ought to come in, the victim of crime is not just exercising a choice over his own life, but also the life of the other. At this point, it is important to take note of a rather obvious fact that has been largely ignored in discourses on Islamic law. According to the Qur’an, the state is left out of the decision making process. It is as if the state is rendered powerless and ineffective, as far as the ultimate decision and disposition is concerned. It is as if the position of the state is similar to that of the Prophet’s—the state stands ready to forgive and forget, but the will of the state is entirely hinged and contingent on the private individual’s exercise of discretion and power.

From a criminal law perspective that is concerned with the public administration of justice, the prevention of crime, and the upholding of law and order, the Qur’anic approach makes little or no sense. How could murder be treated as a private matter when, in fact, it affects all of society? Doesn’t this Qur’anic system, in effect, provide the dreamland for any rich serial murderer who can go on killing with impunity, as he pays off the heirs of his victims? In fact, it is this aspect of the Qur’anic discourse that has provided Orientalist scholars with the opportunity to generate a virtual deluge of criticisms against Islamic law, Islamic justice, and what they perceived as the undeniable failures of Islam when compared to the rational and progressive West. But what many non-Muslim and even Muslim scholars have often overlooked are the powerful moral implications of the Qur’anic discourse. The Qur’an is not engaging in criminal law legislation; it is providing an exemplary and normative moral engagement. In the Qur’an, in the case of murder, as well as in most other cases, the state is not ordered to kill. It is as if God knowing the risks and dangers involved in empowering the state to kill, and wittingly or unwittingly corrupt the earth, God takes that power away from the state and deposits it where it belongs—in the conscience of the individual. To my knowledge, no commentator has ever noticed the disempowering of the state by the Qur’an, but I believe that a fair reading of the text makes this conclusion undeniable. I am not arguing that the Qur’an prohibits the state from killing in all and every circumstance. Rather, the state is simply not commanded to kill, and the decision, in the world of Qur’anic moral symbolism, is taken out of the state’s hands and given to individuals who must struggle with their conscience and responsibilities before the Almighty.
In classical Muslim jurisprudence, the jurists assumed that the state should act as the enforcer of the private individual’s decision. In fact, the vast majority of classical jurists strictly prohibited self-help measures, and made any attempt to retaliate without relying on the state to establish guilt and liability, and also to enforce judgment, both a criminal violation and a sin. If the individual decides to retaliate, by demanding exaction, the state has two choices: either the state could enforce the retaliation on behalf of the individual, or, if the state believes that the retaliatory choice of the individual to be unjust, the state could refuse to enforce the penalty and require the individual to enforce it himself. However, if the individual, instead of the state, is himself applying the physical punishment, he does so at great legal risk to himself. If the physical punishment exceeds the rule of strict equality in injury, the enforcer (i.e. the individual) becomes legally liable for any transgression. The physical exaction of punishment had to be precisely equal in every respect, and if it was not the individual could easily find himself in the position of the aggressor and offender, instead of the victim of crime. In Islamic legal practice, if the individual could not get the cooperation of the state, this created a strong incentive to seek financial settlements instead of insisting on retaliation. But in all circumstances, the state still possessed the residual right to impose a discretionary punishment (known as ta‘zir penalty) against the offender for public policy purposes.

It is fair to say that the history of the Muslim juristic tradition represented a persistent, and often brilliant, effort to realize the moral normativities of the Qur’an. As will be discussed further below, it is not correct to assume that the determinations and choices made within this impressive tradition completely, or even partially, realized the moral vision of the Qur’an. I would even go further and argue that any vision that attempts to realize the Divine moral charge is bound to be incomplete and ephemeral, and will invariably eventually need to be reconceived, re-imagined, and re-articulated. One idea that emerges from the classical tradition, which is profound, is the notion that seeking retaliation and vengeance is dangerous and risky, and that it can easily and unwittingly transform a victim into a transgressor. However, what is conspicuously absent from the deliberations of the juristic tradition is an effort to explore the moral connotations of the Qur’anic empowerment of private individuals in the case possibly implicating the death penalty. In many ways, it is as if the Qur’an considered the death penalty too serious a matter to be left to the state’s discretion. Of course, the state may punish criminal behavior in accordance with the prevailing law at the time, but the Qur’an does not empower the state to execute people. Relegating death to the private individual invokes a moral process that must be permeated with the mercy factor. On this front, the Qur’an engages the individual through a dynamic that for a believer is powerful. The Qur’an counsels human beings that if they deal with kindness and compassion even with their enemy, they are bound to change the hearts of people, and those who were once alienated and resentful will become as if kindred spirits. In addition, in this context, God sets out what can be described as a rule of reciprocity, which makes the mercy factor all the more compelling. In calling upon the aggrieved to forgive, the Qur’an poses the following rhetorical challenge, in effect saying: Forgive, for wouldn’t you like God to forgive you your sins! Moreover, the Qur’an promises those who live in accordance with the mercy factor that God will compensate them in due time, and reward them with forgiveness as well as, what could be described as, meaningful replacements.
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To this point, I have argued that if one explores the Qur’anic moral paradigms, it would become clear that a despotic or tyrannical state should not apply the death penalty under any circumstance because such a state is already a corrupter of the earth. If a despotic state does apply the death penalty, it is violating the exclusive province of God over human life, and, by definition, such a state cannot be the recipient of a Divine providence to decide matters of life and death. As to a non-despotic state, the issue is more difficult and challenging. Although I could not conclude that a non-despotic state is prohibited from killing, I did note that the Qur’an does not order the state, in general, to execute human beings. While it is possible that a non-despotic state would feel empowered to execute individuals, it cannot derive such empowerment from the Qur’an, itself. If anything, the Qur’an seems to empower private individuals with the decision whether to demand a life for a life or any other paradigm of exaction. However, several factors militate against the exaction of talion by private individuals. There is a high risk that private individuals might become the aggressors if they fail to adhere to strict equality between the harm suffered and the harm exacted. Furthermore, the moral trajectory of the Qur’an is not in favor of exaction or vengeance. The moral trajectory of the Qur’an is strongly in favor of the mercy factor—forgiveness as one waits to be rewarded by God. Forgiveness and self-restraint are closer to piety and Divinity. I also argue that fulfilling the mercy factor constitutes a higher realization of the moral vision of the Qur’an and Islam. If an individual seeks to be a truer Muslim and a better human being, they would not demand talion or exaction.

The question that remains, however, is: Assuming a non-despotic state, what if private individuals do not seek to fulfill the moral vision of the Qur’an or to become truer Muslims, and they demand that the state takes vengeance for them, should the state, rightly and justly, enforce the death penalty on behalf of those private individuals? Or, alternatively, can a non-despotic state on its own initiative seek the death penalty against a criminal? I think that these two questions have been answered, in part, by saying that this is the Islamically inferior moral position, and unless the state rejects the idea of moral growth, this is not where an Islamic state ideally would want to be. But another part of the response is that in order to progress on the road of moral growth, the state must structure its paradigms and justifications in a manner that is consistent with the mercy factor. Achieving the constituent elements of the mercy factor would allow the state to reach the ultimate goal of a condition of ihsan. Mercy and compassion could have many characteristics but none of them seem to be premised on the idea of vengeance. One can even go further by saying that vengeance and retaliation are fundamentally inconsistent with the demand for mercy and compassion. Those who choose to be vengeful and who seek revenge might be interested in achieving a certain level of justice, but they are not being compassionate or merciful. Vengeance and retaliation are not sustainable paradigms in the presence of the imperative of compassion and mercy. Put differently, if based solely on vengeance and retaliation, the death penalty is not justifiable, if one considers the mercy factor to be compelling. Vengeance and retaliation standing alone are insufficient to justify the death penalty in an Islamic state that is non-despotic and that is determined to reach the condition of ihsan.
Nevertheless, even if one considers the mercy factor to be compelling, the death penalty could be premised on the logic of deterrence, instead of vengeance and retaliation. Arguably, one can be compassionate and merciful, and at the same time seek to deter criminals from committing capital offenses by imposing the death penalty. In fact, if the mercy factor is compelling, deterrence is arguably the only basis upon which the death penalty can be justified in a non-despotic Islamic state, which considers itself bound by the mercy factor. Deterrence or the lack of it in relation to the death penalty is a difficult empirical question that I cannot appropriately address in this article. However, there appear to be two important parts to the question of deterrence. One part relies on the dissemination and spread of fear in society—those who are thinking of committing a crime avoid doing so because of the fear of execution. The second part relies on a moral educative role for the state—the state emphasizes the importance of life by reserving the most severe punishment to those who destroy it. Of course, like fighting fire with fire, there is an irony to the notion that the state protects life by destroying it. But to be fair, one should recognize that the point of the death penalty in a moral educative paradigm is to convey a message of extreme intolerance towards certain criminal elements in society. From an Islamic perspective, both parts of death penalty policy seem problematic. As to the first, it should be recalled that the spreading of fear is a characteristic of those who cause corruption on the earth, and the question then becomes, whether the ends justify the means. As to the second part, if, as we have assumed, the state is committed to the mercy factor, it becomes more compelling that the state affirms the message about the value of life by acts of mercy and compassion, and not by engaging in the termination of life. This moral lesson is powerfully reflected in the Prophet’s tradition in which he says: “It is much better that the ruler (of a state) be unjustifiably merciful than that he would be erroneously punitive.”

The Death Penalty in the Islamic Tradition:

Before concluding this essay, there remains one significant task, and that is to address the juristic tradition in Islam, and examine the way that this tradition dealt with the issue of the death penalty. I have left this task to the end because there is no question that my arguments presented here are challenged by the ready acceptance of the juristic tradition to accept the death penalty as a just recourse in several instances. It is important to note, however, that although I reach conclusions that are atypical for Islamic law, I should emphasize that my arguments, in large part, were inspired by certain trends and orientations within the juristic tradition in Islam. I do not claim that the interpretations and determinations of the juristic tradition unequivocally support the arguments presented here. Nevertheless, I hope to demonstrate that certain elements within that tradition do provide the fertile grounds in which my arguments are rooted.
In classical Islamic law, there were six capital offenses (known as the hudud crimes), three of which could potentially be punished by execution. The three that could potentially be punished by death were adultery, banditry, and apostasy—the other crimes were punished by less than death. Although murder was considered a capital offense, and it could be punished by death, it was not considered among the hudud crimes. As to each of the offenses punishable by death, Muslim jurists believed that there was specific textual support for such a penalty. According to Muslim jurists, the death penalty was imposable only if God had specifically, precisely, and clearly authorized such a punishment, and these jurists believed that the support for the death penalty, found in Islamic texts, was clear and unambiguous. This is not the place to provide an extensive exposition on whether the textual support in Islamic sources for the death penalty is as unambiguous as some would like to believe, but what is very clear is that the Qur’an does not explicitly or implicitly mandate the death penalty for either apostasy or adultery. According to classical Islamic law, an adulterer or adulteress is to be stoned to death. However, stoning (rajm) is not mentioned in the Qur’an, and in fact, the only punishment for adultery that is mentioned is a physical beating consisting of a certain number of canings or lashings. Likewise, the crime of apostasy is not mentioned in the Qur’an. To the contrary, the Qur’an explicitly states that there ought not be any compulsion in religion, and that people should not be forced into becoming Muslim.

Both penalties, stoning for adultery and execution for apostasy, were derived from non-Qur’anic origins but, rather incredulously, they were nevertheless designated by the classical jurists as Qur’anic punishments. Muslim jurists believed that stoning, as a penalty for adultery, was prescribed in the Torah, and they believed that the Old Testament penalty continued to be valid for Islam. The jurists contended that although the Qur’an said nothing about stoning as a penalty for adultery, stoning was the law of the Israelites, and the Prophet had affirmed the continuing validity of this punishment for Muslims. Apostasy, on the other hand, had an even more ambiguous basis in Islamic law. There is no reliable evidence that the Prophet during his lifetime executed anyone for the crime of apostasy. However, the penalty for apostasy seems to have arisen from a period of time, during the Caliphate of Abu Bakr, when Muslims were engulfed in what was known as the wars of apostasy (hurub al-ridda). Although there was a specific historical context that elicited the emergence of the law of apostasy, the doctrinal support for such a penalty remained flimsy at best.

Setting aside for the moment the issue of whether the historical determinations of Muslim jurists regarding adultery and apostasy were well supported by the textual and doctrinal sources, there is a different aspect to the practices of Muslim jurists that warrants consideration. Regardless of the crime for which they mandated death, Muslim jurists remained extremely reluctant to actually impose the death sentence in any particular case. Although Muslim jurists sought to emphasize the seriousness and graveness of certain crimes by, in principle, decreeing the death penalty, they were, at the same time, not willing to implement this ultimate punishment with any degree of zeal. This is verified by the surprisingly few number of incidents of stoning for adultery or execution for apostasy conducted in Islamic history. This was, in part, due to the strenuous evidentiary standards that Muslim jurists demanded in order to enforce the death penalty, and it was also due to the cumulative opportunities offered by Muslim jurists to the defendant to express repentance and escape death. In the case of adultery, for instance, what was required was either a freely given non-coerced confession, which must be repeated four times on four separate occasions, or four witnesses who saw the intercourse by observing the actual act of vaginal penetration. As a deterrent measure, false accusations were punished by eighty lashes and public censure. Importantly, if one or more of the four witnesses recants his testimony, or is unable to say that he saw the actual act of penetration (perhaps he just saw the couple lying naked in bed), the other witnesses are punished for slander. Naturally, the point of this was that no one should dare bring such an accusation unless they are absolutely certain about their charges, and the evidence is clear and unequivocal. In the case of apostasy, the evidence indicating that the defendant had abandoned Islam was supposed to be clear, explicit, and unequivocal. In addition, the defendant had to be granted three nights and days to repent and return to Islam, and in the opinion of many jurists, as long as there remained a reasonable chance that the defendant would repent, he could not be executed. Moreover, regardless of the evidence against the defendant, if at any time, during or after the criminal proceedings, the defendant affirms the testament of faith, the defendant could not be executed.

Militating against the application of the death penalty was the fact that Muslim jurists developed the idea of presumption of innocence in all criminal matters and argued that the accuser always carries the burden of proof (al-bayyina ‘ala man idda ‘a). Muslim jurists also condemned the use of torture, arguing that the Prophet forbade the use of muthla (the use of mutilations) in all situations, and opposed the use of coerced confessions in all legal and political matters. A large number of jurists articulated a principle similar to the American exculpatory doctrine -- confessions or evidence obtained under coercion are inadmissible at trial. Relying on the legal principle that in capital offenses, any doubt acts to nullify the penalty, most Muslim jurists argued that coercion, necessity, and torture presumptively act so as to create doubt sufficient to nullify the death penalty.
The point is not to assess the sagaciousness of these measures or their effectiveness. The point is that the juristic response was legalistic, technical, and creative. In light of the decisive and grave consequences of the death sentence, Muslim jurists were not willing to accept it without qualifications, and they seemed to have struggled with its implications and impact. As often happens in a legalistic interpretive culture, Muslim jurists did not respond at the conceptualized or broad theory level. Rather, their response was at the micro level of technical legalities. While they accepted the death penalty in principle, at the level of the process and implementation, they made the infliction of the death penalty difficult. In effect, at the micro technical level, Muslim jurists closed the doors on the possibility of implementing the death penalty, while they left the doors wide open for lesser discretionary criminal punishments and for repentance and pardon. The moral paradigm that inspired Muslim jurists to endeavor to avoid the death penalty is well represented in an educational message that teachers of Islamic law in the classical age often repeated and emphasized to their students. The message provided was that: It is better to let a thousand heretics go free than to wrongfully punish a single sincere Muslim, and it is always better to save the life of a thousand guilty persons than to unwittingly murder a single innocent person.

Towards the Future:

Cold utilitarian logic, rational self-interested deduction, instinct, and perhaps even simple whimsy and self-indulgence, when needed, will always supply human beings with good reasons to kill. Aside from that, the state, any political entity that represents the elite, and often the loudest and most obnoxious elements within a society will often want to possess the power to kill. If power, in general, is intoxicating, this kind of power—the power to kill will often serve as a sort of hallucinogen, giving whoever possess it an ultimate sense of control, and a false sense of security. It could even allow those who lost a loved one to overcome a sense of violation and vulnerability, and think that the execution of the offender will somehow restore balance to their lives and more importantly, to the life of the victim of murder. I think we often treat the victims of murder as if they continue to live, and as if killing the offender will restore some of life that was unjustly taken away from them. But like so many other short order fixes and instantaneous solutions, the costs associated with seeking after the immediate and gratifying, turn out in the long term to be oppressively prohibitive. It seems to me, however, that executions are too serious a business to be left to the vagaries of societal whimsies or even logic and rationality. More particularly, the infliction of death is too grave a matter to entrust to the state, especially the authoritarian and despotic state. When confronted with something so laden with meaning and consequence as human life, it seems that what is needed is not logic, rationality, or instinct but magnanimity (ihsan). In the case of Islam, this magnanimity is captured and augmented by what I called the mercy factor. The balance of justice, ethics, and, indeed, existence (al-mizan) is restored through the pursuit of the mercy factor, and not by enforcing the paradigm of strict retribution, or a life for a life, and an eye for an eye. Contrary to the message conveyed by the practices of several predominantly Muslim countries that supply some of the highest rates of executions in the world today, the Islamic vision of justice is not founded on vengeance and retribution. The Islamic vision of justice is premised on mercy and compassion, and the absolute sanctity of human life. Regardless of the moral achievements and failures of the past, the burden is always on Muslims to strive continuously towards a greater fulfillment and attainment of the Divine charge, and to achieve new levels of magnanimity and sanctification of human life. It is exactly the magnanimity and sanctimony of human life that perhaps today calls upon us, Muslims, to reconsider the morality of the killing state.

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